Brianna R., Jordan M. v. Dcs

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BRIANNA R., JORDAN M., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, P.M., K.M., Appellees.
No. 1 CA-JV 19-0401
FILED 9-22-2020
Appeal from the Superior Court in Maricopa County
No. JD34832
JS19559
JS19923
The Honorable Karen A. Mullins, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Brianna R.
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant Jordan M.
Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety
BRIANNA R., JORDAN M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.
C R U Z, Judge:
¶1 Brianna R. (“Mother”) and Jordan M. (“Father”) appeal the
superior court’s order terminating their parental relationships to their
children, K.M. and P.M. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father (collectively, “Parents”) are the biological
parents of K.M., born June 2017, and P.M., born October 2018.
¶3 In the late evening of August 24, 2017, Mother and Father
brought K.M., then two months old, to Banner Hospital. Parents told the
hospital staff that K.M. had been crying, then suddenly stopped making
noise, became limp, and had abnormal breathing. Parents told doctors that
other than some reflux issues, K.M. had been an otherwise healthy and
happy baby. Parents denied that K.M. had any prior hospitalizations or
neurological problems, and they denied he had been involved in any
accidental injury, such as a fall or car accident. Doctors told Parents to try
feeding K.M., but he projectile vomited after drinking only about an ounce
of formula.
¶4 Concerned K.M. had sepsis or another infection, doctors gave
K.M. IV fluids and antibiotics. K.M. underwent blood tests, which revealed
he had elevated white blood cell, platelet, and lactic acid levels. X-rays also
indicated that K.M. had “hyperinflated lungs and peribronchial thickening
suggesting bronchiolitis or reactive airway disease.” K.M. did not have a
fever. Doctors transferred K.M. to Phoenix Children’s Hospital (“PCH”)
early on the following morning for a lumbar puncture and further testing.
¶5 Additional lab work was completed on K.M., which ruled out
any blood disorder. The lab work also indicated that K.M.’s platelet and
blood cell counts had returned to normal levels. A CT scan and an MRI
were conducted on K.M.’s brain, which showed K.M. had a subdural
hematoma, as well as subarachnoid and retinal hemorrhages. At this point,
doctors became concerned K.M. had possibly been abused, and he was
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transferred to an intensive care unit. A nurse practitioner with the child
protection team at PCH, Cynthia Nelson, examined K.M. Nelson found
that K.M.’s injuries were consistent with abusive head trauma, better
known as “shaken baby syndrome,” and suspected child physical abuse.
Parents told Nelson that K.M. had reflux issues since birth, and he had been
spitting up his formula often and was fussy. However, Parents were
recently given a prescription for a new formula, and since changing
formulas, K.M. was “mostly happy.” Parents did not indicate any other
concerns regarding K.M.’s health prior to his hospitalization.
¶6 Nelson asked Parents to explain the events that led up to
K.M.’s hospitalization. Parents told Nelson that on the day of K.M.’s
hospitalization, he had been slightly fussier than usual. Around 8:30 p.m.,
Father was home alone with K.M. while Mother was driving a friend home.
Father explained that K.M. woke up and was crying, so Father took him to
the living room to change him. Father said K.M. was still crying, so he
placed K.M. on the couch and went into the kitchen to prepare a bottle.
While in the kitchen, Father heard K.M. stopped crying. Father went back
into the living room, and he stated K.M. looked like he was asleep.
However, when Father picked K.M. up, he was limp. Father tried patting
K.M’s butt, lifting his arm, and pinching his leg, but K.M. did not respond
or react. Father called Mother, who told him she was on her way home,
between five to ten minutes away. By the time Mother came home, K.M.
had started to wake and open his eyes. However, K.M.’s pupils were large,
and he seemed pale, “dazed,” and was not acting normal. Soon after,
Parents drove K.M. to the hospital.
¶7 A pediatric ophthalmologist, Dr. Cassidy, was brought in to
consult on K.M.’s retinal hemorrhages. Dr. Cassidy found that K.M. had
optical nerve damage and hundreds of hemorrhages in both eyes across all
three retinas and in all geographic areas of the eyes, which was consistent
with abusive head trauma. Dr. Cassidy also noted his concern that blood
was blocking the central view in the left eye, which could affect K.M.’s
vision as he grew older. Neurology was also asked to assess and consult
on K.M. Dr. Teaford, of Neurology, identified that K.M. was experiencing
seizures, and so K.M. was subjected to twenty-four-hour EEG monitoring
and was placed on anti-seizure medications. Despite this, doctors
identified that K.M. was awake, alert, and did not appear to be in distress.
¶8 A couple of days after K.M. arrived at PCH, the test results for
K.M.’s lumbar puncture came back. The lumbar puncture of K.M. tested
negative for bacterial infections, although K.M. did test positive for
enterovirus, a common viral infection in children that could be
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asymptomatic. However, the positive enterovirus test could also be
indicative of a more serious illness, such as meningitis or encephalitis. To
determine if K.M.’s retinal and subdural hemorrhages were correlated to a
possible virus, such as meningitis or encephalitis, PCH requested a
pediatric infectious disease specialist, Dr. Nania, to conduct an evaluation.
During the lumbar puncture, the needle could have struck a blood vessel,
causing blood to mix into the spinal fluid and alter the results. Therefore,
Dr. Nania could not say if the positive test for enterovirus was indicative of
meningitis or encephalitis. However, K.M. was not presenting as an ill
child, he did not have a fever, and his vitals were normal. Dr. Nania opined
that the enterovirus did not cause the subdural, subarachnoid, and retinal
hemorrhages in K.M., and instead, these injuries were more concerning for
trauma.
¶9 PCH notified the Office of Child Welfare (“OCW”) and the
Department of Child Safety (“DCS”) that K.M. had potentially been abused.
OCW investigator Brian Moore, as well as law enforcement, conducted a
joint investigation. Parents were interviewed and denied causing the
injuries to K.M., and neither believed the other parent to be responsible for
the injuries. Parents admitted they were the sole caretakers for K.M., and
K.M. had never been alone with anyone else without Mother or Father
present. Parents told OCW and law enforcement the same version of events
that took place on the day of K.M.’s hospitalization that they told nurse
Nelson. However, Parents added that K.M. had been “inconsolable” in the
days leading up to his hospitalization, he was not sleeping or eating, and
he had been projectile vomiting. Mother told Moore that she believed his
recent immunizations or genetic issues caused K.M.’s injuries.
¶10 K.M. spent about ten days in the hospital. DCS served Parents
with a temporary custody notice, and Parents were unable to take K.M.
home. Instead, K.M. was released from the hospital into the custody of the
maternal grandmother. Shortly after, DCS filed a dependency petition,
alleging Mother and Father were unable to parent K.M. due to physical
abuse or failure to protect K.M. from physical abuse.
¶11 Parents were referred for case aide services and parent aide
services and offered supervised visitations. DCS recommended that
Parents enroll in individual counseling sessions and undergo psychiatric
evaluations, as well. Mother and Father were referred for psychological
evaluations, which took place in November 2017 with Dr. Thal. Parents
denied abusing K.M. during both of their evaluations. However, Dr. Thal
opined that Parents should engage in counseling, and any attempts at
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reunification should be made with “great caution,” given the circumstances
of K.M.’s dependency.
¶12 Although Parents were engaged in services, Parents
continued to deny any involvement in K.M.’s injuries. Due to Parents’
refusal to acknowledge the abuse, DCS sought to terminate the parental
relationship in April 2018. DCS alleged that neither parent was capable of
protecting K.M. from abuse, Parents lacked insight into the severity of
K.M.’s injuries, and Parents were unwilling to accept the judgment of
medical professionals, which demonstrated their lack of concern for K.M.’s
safety.
¶13 A contested dependency hearing was held over eight days in
September 2018 through December 2018. During the hearing, there was
testimony from OCW investigator Moore, the DCS case manager, maternal
grandmother, Mother’s counselor, the parent aide, psychologist Dr. Thal,
nurse Nelson, pediatric ophthalmologist Dr. Cassidy, pediatric infectious
disease physician Dr. Nania, defense expert Dr. Matshes, and Parents.
Following the conclusion of the dependency hearing, the superior court
found K.M. dependent as to Mother and Father.
¶14 During the dependency adjudication and in October 2018,
Mother gave birth to Parents’ second child, P.M. After his birth, P.M. was
taken from the hospital and into the temporary physical custody of DCS.
Maternal grandmother was unable to serve as placement for two young
children, so P.M. was placed with another relative. DCS filed a dependency
petition, alleging P.M. was dependent to Mother and Father due to the
alleged abuse of K.M., which created an imminent risk of harm to P.M. DCS
subsequently moved to terminate Mother and Father’s parental
relationship to P.M. in February 2019.
¶15 The dependency adjudication as to P.M. and the termination
hearing for both P.M. and K.M. were consolidated and held over eight days
from May 2019 through September 2019. During the trial, testimony was
again heard from Dr. Thal, Dr. Cassidy, maternal grandmother, the former
DCS case manager, and Parents. In addition, there was testimony from
paternal grandmother, injury biomechanics engineer Dr. Bertocci, defense
expert Dr. Loyd, pediatric ophthalmologist Dr. Plotnik, and the current
DCS case manager. After the State rested, Mother’s attorney made an oral
motion for judgment as a matter of law, arguing the State failed to raise any
evidence as to the best interests of the children. The superior court denied
the motion.
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Decision of the Court
¶16 Following the trial, the superior court found P.M. dependent
as to Mother and Father, and the court terminated Parents’ parental
relationships to K.M. and P.M. Mother and Father timely appealed. We
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
8-235, 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶17 Although the right to custody of one’s children is
fundamental, it is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). To terminate a parental relationship, the
superior court must make a two-part inquiry. Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 149-50, ¶ 8 (2018). First, the court must find by clear and
convincing evidence at least one of the grounds for termination in A.R.S.
§ 8-533(B). Id. Second, the court must find by a preponderance of the
evidence that severance is in the child’s best interests. Id.
¶18 “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
Accordingly, this court does not reweigh the evidence, and will look only
to determine if there is reasonable evidence to sustain the court’s ruling.
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We
accept the court’s factual findings if reasonable evidence supports them and
will affirm its severance ruling unless it is clearly erroneous. Demetrius L.
v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).
I. Statutory Ground of Willful Abuse or Failure to Protect from Willful
Abuse
¶19 The superior court terminated Mother and Father’s parental
rights pursuant to A.R.S. § 8-533(B)(2), finding each “parent has neglected
or wilfully abused a child. This abuse includes serious physical or
emotional injury or situations in which the parent knew or reasonably
should have known that a person was abusing or neglecting a child.”
Abuse is further defined as
the infliction or allowing of physical injury, impairment of
bodily function or disfigurement or the infliction of or
allowing another person to cause serious emotional damage
as evidenced by severe anxiety, depression, withdrawal or
untoward aggressive behavior and which emotional damage
is diagnosed by a medical doctor or psychologist and is
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caused by the acts or omissions of an individual who has the
care, custody and control of a child.
A.R.S. § 8-201(2).
A. Abuse of K.M.
¶20 Mother argues that DCS failed to prove by clear and
convincing evidence that Mother abused K.M. or was unable to protect
K.M. from abuse, and she argues that the medical findings do not
“conclusively demonstrate” that K.M. was abused. However, as Mother
recognizes in her brief, clear and convincing evidence does not require
“conclusive” evidence, but instead evidence that is “highly probable or
reasonably certain.” See Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25
(2005) (internal quotation omitted). On appeal, this court does not reweigh
the evidence, and we find there is reasonable and sufficient evidence to
sustain the superior court’s ruling that either Mother abused K.M. or failed
to protect K.M. from abuse. See Jesus M., 203 Ariz. at 280, ¶ 4; Mary Lou C.,
207 Ariz. at 47, ¶ 8.
¶21 Ophthalmologist Dr. Cassidy found hundreds of
hemorrhages throughout the retinas in both of K.M.’s eyes. The
hemorrhaging was extensive and present in all geographic areas of the eyes,
and throughout all three layers of the retina: underneath, within, and in
front of the retina. Dr. Cassidy testified that there are specific ways to
distinguish retinal hemorrhages depending on the cause of the injury, and
he opined that the particular type and pattern of hemorrhaging found in
K.M.’s eyes was consistent with abusive head trauma. Dr. Cassidy further
testified that the particular hemorrhaging in K.M.’s eyes could have only
been found in four circumstances: (1) a crushing force to the head; (2) a
significant single acceleration/deceleration injury, such as a fall from forty
to seventy feet or a high-speed car accident that resulted in impact; (3) a
repetitive acceleration/deceleration injury, such as a vigorous shaking; or
in very rare cases (4) a rare blood disorder, such as end-stage leukemia or
sepsis that has progressed to the point where the child’s organs are shutting
down. Parents denied K.M. was involved in an accident, a car crash, or fall,
and blood tests ruled out the possibility that K.M. suffered from any blood
disorders, leaving the most likely possibility for K.M.’s injuries to be from
vigorous shaking.
¶22 When K.M. first arrived at Banner Hospital, K.M.’s white
blood cell, platelet, and lactic acid counts were elevated. Within several
hours, however, K.M.’s levels were normal. Infectious disease physician
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Dr. Nania testified that because K.M.’s blood cell and platelet count
dropped and normalized so quickly, the elevated levels are likely an
indication of physiologic stress or trauma, as opposed to an infection.
Although K.M. was given a dose of antibiotics, Dr. Nania testified that it
would be unlikely that the antibiotics would have resolved an infection so
quickly.
¶23 K.M. tested positive for enterovirus, although Dr. Nania
testified that this is a common virus in children that includes over seventy
distinct viruses that can be asymptomatic, as mild as a common cold, or it
can be a more serious illness like meningitis or encephalitis. Given the
tainted lumbar puncture at the time the spinal fluid sample was extracted,
Dr. Nania was unable to rule out definitively any viral infections. However,
Dr. Nania testified that it was unlikely K.M. would have been suffering
from meningitis or encephalitis, because K.M. did not have any symptoms
of these illnesses, particularly the universal symptom of a fever. Dr. Nania
also testified that given the extent of K.M.’s hemorrhaging and hematomas,
his injuries were not consistent with meningitis or encephalitis. Likewise,
Dr. Cassidy testified that it is uncommon to see hemorrhaging in cases of
meningitis, and in the rare occasions that hemorrhaging is present, it
consists of only ten to twenty hemorrhages and is not the same pattern as
found in K.M.’s eyes.
¶24 Pathologist Dr. Matshes testified on behalf of Mother and
Father as their medical expert. Dr. Matshes did not observe K.M. personally
and did not examine him, and he based his opinion on K.M.’s medical
records. Dr. Matshes opined that K.M. was not the victim of child abuse,
and instead, “it is more likely that he had a relatively uncommon disease
(viral meningitis, encephalitis or meningoencephalitis) which presented in
a rare way.” Dr. Matshes was unable to identify the specific disease he
believed K.M. suffered from, he did not identify any specific symptoms that
K.M. presented with that would be consistent with such a disease, and he
provided no testimony that the type of retinal hemorrhaging found in
K.M.’s eyes would be consistent with such a disease. K.M. did not have a
fever, and none of the examination notes from the doctors indicate that
K.M. was presenting as a seriously ill child. Dr. Nania testified that when
he examined K.M., he appeared healthy, and there was no indication that
he was suffering from sepsis or a serious infection. Similarly, Dr. Cassidy
testified that if K.M. had sepsis, he would have been “deathly ill,” although
K.M. did not appear ill during Dr. Cassidy’s examination.
¶25 Dr. Matshes was also unable to rule out that K.M. suffered
from abusive head trauma, and he testified that the pattern of hemorrhages
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found in K.M.’s eyes usually indicate abuse has occurred. Dr. Matshes
conceded that it would be rare for a child to suffer from the type of retinal
hemorrhaging K.M. sustained if he was severely ill, but it would not be rare
to see this type of hemorrhaging in a child with abusive head trauma. In
his expert report, Dr. Matshes states that “the dominant clinical child abuse
pediatrics view is that certain types of retinal hemorrhages are highly
suggestive—if not diagnostic—of Abusive Head Trauma.” Dr. Matshes
stated further that the incidence of retinal hemorrhages in abusive head
trauma is about 85 percent, but he “assign[s] no significance to the retinal
hemorrhages documented in this case.” The superior court found this to
have “seriously erode[d]” Dr. Matshes’ credibility.
¶26 Parents have attempted to undermine Dr. Cassidy’s findings
with that of another ophthalmologist, Dr. Plotnik. Although Dr. Cassidy
testified that K.M. had permanent nerve damage, and as of a December 2018
examination, there was still some staining or scarring in K.M.’s left macula,
Dr. Plotnik did not observe any abnormalities with K.M.’s eyes in April
2019. However, Dr. Plotnik testified that while maternal grandmother told
him K.M. had retinal hemorrhages at the age of two months from an
unknown cause, he was not told that the hemorrhages were in the
hundreds. Dr. Plotnik testified that he was also unaware that K.M. had
nerve damage. Dr. Plotnik observed K.M. for only about five minutes, and
had he been aware of K.M.’s medical history, he would have altered his
examination to look more in-depth for the scarring and nerve damage
observed by Dr. Cassidy. Dr. Plotnik testified that he did not question or
doubt Dr. Cassidy’s previous findings, and his quick examination had not
uncovered any issues that were “grossly visible.”
¶27 Parents have also attempted to cast doubt that they shook
K.M. because PCH records do not indicate that there was any bruising,
fractures, or other external injuries on K.M. Biomechanical injury engineer
Dr. Loyd testified as Parents’ expert witness. Dr. Loyd testified that if
Mother and Father had shaken K.M., there necessarily would have been
external injuries on K.M., such as bruising, fractured ribs, or a neck injury.
However, Dr. Loyd was unable to point to any scientific studies or literature
that supported his opinion. Dr. Loyd also testified that if an adult held an
infant under his armpits and shook him, the infant’s arms would rip off,
“no doubt about it.” In its ruling, the superior court stated that it was at
this point that the court “lost complete confidence in Dr. Loyd’s credibility.”
¶28 Dr. Bertocci, the State’s biomechanical injury engineer,
testified that abusive head trauma can occur without evidence of external
injuries, which was confirmed by various clinical studies. Dr. Cassidy
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corroborated this testimony, and he testified that in his personal experience
of treating children, about twenty percent of children with abusive head
trauma had no external injuries. Dr. Bertocci also testified, and Dr. Loyd
agreed, that an individual can have bruising that is not visible to the human
eye, or the bruising may take several days to appear. Dr. Bertocci also
testified that imaging techniques, like MRIs, do not necessarily detect neck
injuries. There was also evidence at trial that PCH never completed an MRI
of K.M.’s neck, so it was unknown if he had suffered from any neck injuries.
¶29 Finally, the superior court found both Mother and Father
lacked credibility and concluded that at the trial “Mother and Father
exaggerated or outright fabricated material aspects” of the events the day
K.M. was hospitalized. At trial, Mother testified that the day K.M. was
hospitalized, K.M. was inconsolable and would not calm down. She stated
that K.M. would only sleep for fifteen to twenty minutes at a time, and he
would wake up with his face beet red, his back arched, and he cried as
though he was in pain. Mother also testified that K.M. had been projectile
vomiting, and he was not tracking Mother with his eyes. Neither Banner’s
nor PCH’s hospital records memorialize these facts, even though both
hospitals took a history from Parents when they arrived. PCH records
indicate that Parents told doctors K.M. was previously healthy. Mother told
nurse Nelson that since changing K.M.’s formula, he was “mostly happy
now.” Banner records state that Mother and Father denied vomiting,
shortness of breath, fever, and chills.
¶30 Mother testified that K.M. had a two-month well-baby check
on August 10, and K.M. was ill at the time. The medical records from this
visit reflect that the only concern Parents had for K.M. was that he was
spitting up formula, which the doctor diagnosed as reflux. Mother also
testified that even though K.M. was ill, the doctor insisted Mother give K.M.
his vaccinations. Again, the medical records do not support this testimony.
A return visit was recommended in a week, but Parents did not return to
the doctor’s office before the August 24 hospitalization.
¶31 Mother and Father also testified that prior to his
hospitalization, K.M. was croupy and had a fever of about 102 degrees that
lasted four days, beginning around August 12. However, Mother and
Father did not bring K.M. to the doctor. Instead, Mother alleges that she
called her doctor and told them about K.M.’s fever on several occasions, but
there is no record of these phone calls. The doctor’s office has a record that
Mother called to refill K.M.’s formula prescription on August 23, and the
record does not indicate that Parents expressed any concern about K.M.’s
health. Parents also claim that although their ten-week-old son had a fever
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of about 102 degrees for four days in a row, the doctor’s office told Mother
she was overreacting and “crazy” for her concern, and it was unnecessary
to bring K.M. into the doctor’s office. Again, there is no record in the
doctor’s office or hospital records that support this account of events.
¶32 Although Mother and Father have continued to deny abusing
K.M., there is reasonable evidence to suggest Parents were not credible
witnesses or historians as to the events that led to K.M.’s hospitalization,
and there is compelling medical evidence that K.M. suffered from abusive
head trauma. Mother and Father testified that they were the sole caregivers
of K.M. and that K.M. was never alone with another person without Mother
or Father also present. The superior court did not err in finding that K.M.
suffered from abusive head trauma.
B. Risk of Abuse to P.M.
¶33 P.M. was placed in DCS custody right after his birth, and
there are no allegations that Mother or Father abused him. However, the
superior court can terminate parental rights to children who exhibit no
evidence of abuse if it finds by clear and convincing evidence that there is
a risk of harm to those children. Sandra R. v. Dep’t of Child Safety, 248 Ariz.
224, 228, ¶¶ 16-17 (2020).
¶34 Mother argues that because there is insufficient evidence to
support a finding that K.M. was abused, the superior court’s finding that
P.M. was at risk of abuse automatically fails. However, as explained above,
there is reasonable evidence to support the superior court’s finding that
K.M. was abused. Mother also contends that P.M. is not at risk of abuse,
because she did not abuse K.M., and she was able to “effectively and
appropriately” parent P.M. during visitations.
¶35 The superior court found that P.M. was “vulnerable for the
same abuse suffered by [K.M.] given his infant status, and Mother and
Father intend to raise [P.M] together in the joint residence, even though
neither parent recognizes the danger to [P.M.] and the conditions in the
home wherein [K.M.] was injured remain the same.” Further, the court
found that “Mother and Father’s refusal to even seriously consider the
compelling medical evidence in this case, and instead steadfastly and
blindly stand by one another, is unreasonable and creates a significant and
intolerable risk of harm” to K.M. and P.M. The superior court did not err
in finding there existed a risk of harm to P.M. due to K.M.’s injuries, and
thus the court did not err in terminating the parental relationship to P.M.
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II. Best Interests
¶36 Mother and Father argue the superior court erred in
determining that termination was in K.M. and P.M.’s best interests.
Termination is in a child’s best interests if the child will benefit from
severance, or the child will be harmed if the court denies it. Alma S., 245
Ariz. at 150, ¶ 13. Additional factors that support a finding the child would
benefit from severance include the availability of an adoption plan, a child’s
adoptability, and whether an existing placement is meeting the child’s
needs. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App.
2013); Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App.
1994).
¶37 The superior court noted that termination would be a benefit
for the children because “each child would continue to reside in a home that
is safe and free from the potential for additional abuse,” and “each child
would have permanency.” The court found it would be detrimental not to
terminate the parental rights “as there is no reasonable likelihood that the
parents will be able to safely parent either child, and thus the children will
linger as wards of the court.” Additionally, at trial, there was testimony
that the children were adoptable, the children were in kinship placements
that provided them loving homes, and the placements were willing to
adopt the children.
¶38 Mother argues that it is not in K.M.’s or P.M.’s best interests
to terminate her parental relationship because she can effectively and
appropriately parent and protect her children. Additionally, Mother argues
that she loves her children and is bonded to them. However, the existence
of a bond between biological family members, “although a factor to
consider, is not dispositive in addressing best interests.” Dominique M. v.
Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 12 (App. 2016). Regardless of her
bond with the children, both DCS and psychologist Dr. Thal opined that it
was not in either child’s best interests to reunify the family given the nature
of K.M.’s injuries and Parents’ continued denial of abuse. A DCS
caseworker testified that DCS was concerned about the risk to the children,
stating that “if no parent has come forward and admitted to the abuse, then
there would be a concern that the abuse could happen again.” Further, even
if Mother was not the abuser, DCS testified that her inability to recognize
then that Father abused K.M. prevents her from protecting the children in
the future.
¶39 Mother also argues her completion in services demonstrates
that it is not in the children’s best interests to terminate her parental
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relationship. Similarly, Father argues the court erred in failing to consider
Father’s participation in services when deciding the issue of best interests.
The superior court expressly recognized Mother and Father’s participation
in services; however, it also recognized that “these services have not and
cannot alleviate the risk of harm to either child.”
¶40 Dr. Thal testified that compliance with services would not
resolve the risk of further abuse to the children absent Parents’ admission
K.M. was abused. Dr. Thal testified that Parents’ participation in therapy
and individual counseling services was thus-far ineffective because the
success of these services is “built on candor” and “a patient being able to
address a problem.” Dr. Thal also testified about the importance of Parents’
admission so services could target issues that may have led to the abuse,
such as lack of impulse control or failure to manage anger. Further, Dr.
Thal opined that a parent’s dishonesty as to the child’s abuse leads to a
higher risk of reoccurrence, and harboring such a secret could be
destructive psychologically, weighing heavily on a person’s mental state.
The DCS caseworker testified that if a parent is unable to acknowledge the
problem that led to dependency, it is very questionable that the parent
would make any progress in services. See Maricopa Cnty. Juv. Action No. JS-
501568, 177 Ariz. 571, 577 (App. 1994) (“Leaving the window of opportunity
for remediation open indefinitely is not necessary, nor do we think that it is
in the child’s or the parent’s best interests.”). The superior court did not err
in finding it was in the children’s best interests to terminate the parental
relationship.
¶41 Finally, Mother argues that the court erred in denying her
motion for judgment as a matter of law during the trial, in which Mother
argued the State failed to provide any evidence on best interests. However,
as previously explained, the State provided evidence during the trial that
the children were adoptable and that the current placements were willing
to adopt the children. DCS also testified about the importance of
permanency and consistency for the children. The court did not err in
denying the motion.
III. Mother’s Older Children
¶42 Father argues that the superior court “cannot find Father unfit
to parent” K.M. and P.M., because he was helping Mother parent her three
older children. Mother also argues that the superior court erred in
terminating her parental rights to K.M. and P.M. when Mother has parented
three other children. In addition to K.M. and P.M., Mother has ten-year-old
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twin sons with Eric N., and she has an eight-year-old daughter with Charles
G.
¶43 Even though Parents’ abuse of K.M. is sufficient to establish
their current unfitness to parent K.M. and P.M., see A.R.S. § 8-533(B)(2), the
superior court found that Parents’ testimony about Mother’s parenting of
her three older children lacked credibility. It was unclear how much time
Mother and Father truly spent parenting the three older children. In its
ruling, the superior court stated Mother had “misled the court by testifying
that she was [the daughter’s] primary caregiver.” Although both Mother
and Father allege Mother’s daughter has transitioned to living with them
full time, the current custody orders indicate that Mother and Charles G.
have shared physical custody of their daughter. Maternal grandmother
also testified that Eric N. had primary physical custody of Mother’s twin
sons, and Mother sees her twin sons maybe every other weekend.
¶44 There was also evidence that since the twin sons’ birth, Eric
N. has been the primary parent with physical custody, and Mother
admitted she was “unstable” when the twins were younger. In a prior
family law matter in 2014 regarding Mother’s twin sons, the superior court
found Mother was only seeing her sons one time a month. At that same
hearing, maternal grandmother testified that “Mother was not a very good
mother for a long time” to her twin sons, although “she had gotten better.”
Charles G. alleged that Mother was not involved in their daughter’s life for
the first three-and-a-half years.
¶45 Additionally, DCS made it clear that its concern about
Mother’s and Father’s fitness as parents was specific to their ability to care
for an infant. DCS stated if the kids “were older, it’d be a different
conversation,” but newborns in particular “cannot protect themselves” and
“don’t know how to call for help if something is happening.” Dr. Thal
testified that newborns are particularly vulnerable and at risk of abuse.
Although Mother still sees her older children, they are no longer vulnerable
newborns. And although Mother alleges she has experience with infants
and was never found to have abused her three older children, there was
ample evidence at trial that Mother did not have significant involvement
with her three older children when they were infants. The superior court
did not err.
IV. Second Medical Opinion
¶46 Father argues the superior court erred in terminating Father’s
rights because DCS denied the request of maternal grandmother to get a
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second medical opinion of K.M.’s injuries. During both the dependency
adjudication as to K.M. and the termination adjudication for both children,
maternal grandmother testified that DCS would not allow her to take K.M.
to an unapproved doctor to get a second opinion or examination of K.M.’s
eyes. The superior court addressed this issue in its ruling, stating “[n]either
Mother nor Father ever filed a motion with the court requesting a second
medical opinion and any issue that could be raised in this regard has been
waived.”
¶47 Although Father concedes he has waived this argument, he
asks this court to address the issue because it is of “great public importance
or an issue capable of repetition yet evading review.” Father asks this court
to rule that a parent has an absolute right to get a second medical opinion
of a child’s injuries as soon as possible after the original diagnosis. We
decline to do so.
¶48 Pursuant to A.R.S. § 8-531(5)(c), when DCS has custody of a
child, it has “[t]he responsibility to provide the child with adequate food,
clothing, shelter, education and medical care . . . subject to the residual
parental rights and responsibilities if they have not been terminated by
judicial decree.” (emphasis added). Citing no case law, Father contends
that included in these “residual parental rights” is the right “to get a second
opinion of a child that DCS has removed from her care under suspicions of
abuse.” However, “[t]he [S]tate has an interest in the welfare and health of
children.” Cochise Cnty. Juv. Action No. 5666-J, 133 Ariz. 157, 161 (1982). As
such, DCS has a legitimate interest in approving the medical professionals
that treat children in its custody, ensuring the treating physicians are
licensed professionals in good standing, providing adequate care.
Additionally, maternal grandmother testified that DCS gave her a list of
preapproved doctors that could treat K.M.; maternal grandmother was free
to seek the medical opinion from that list of doctors. Indeed, K.M. was
examined by other ophthalmologists other than Dr. Cassidy.
¶49 Father also argues parents have “a procedural right to obtain
a second opinion for the purposes of litigation.” Generally, a party may not
argue on appeal legal issues not raised in the superior court. McDowell
Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5 (1997). As the superior
court noted, Parents could have filed a motion with the court to request a
second medical opinion, and they failed to do so. Therefore, we deem this
argument waived and do not address it further.
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V. Foster Care Review Board’s Recommendation
¶50 Both Mother and Father argue that the court erred in not
following the Foster Care Review Board’s July 2019 recommendation that
the case plan be changed to reunification. While the Review Board
Recommendations and Findings are important to dependency and
termination cases, neither DCS nor the court is required to follow them.
Father cites a statute that states in relevant part, the “department shall
provide the local foster care review board with written notice . . . if the
department intends to accept or not implement the board’s recommendations.”
A.R.S. § 8-515.03(1) (emphasis added). We do not reweigh evidence on
appeal, and it is not within this court’s purview to decide the weight the
superior court is to give the Review Board’s Recommendations and
Findings. See Jesus M., 203 Ariz. at 280, ¶ 4; Mary Lou C., 207 Ariz. at 47,
¶ 8.
¶51 Additionally, there was testimony at trial that called into
question the extent of the knowledge the Review Board had regarding this
case. DCS testified the Review Board’s Recommendations and Findings
contained only a basic outline of the facts and K.M.’s injuries, which did not
accurately capture the complexity of this case. While the Recommendation
and Findings indicate the Review Board had access to and reviewed various
minute entries from the superior court, it does not appear the Review Board
had reviewed the superior court’s dependency ruling or other, more
detailed court orders. There was testimony at trial that the Review Board
told Parents it needed more documentation from Parents because it did not
have enough documents and records to complete its review. DCS was not
present at the July 2019 meeting with the Review Board, and there was
testimony that the Recommendations and Findings were based almost
entirely on Parents’ and the grandparents’ self-reports. The superior court
did not err.
VI. Dependency of P.M.
¶52 Finally, Mother argues that the superior court erred in finding
P.M. dependent as to Mother. However, the order terminating Mother’s
parental rights to P.M. renders the dependency finding moot. See Rita J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 512, 515, ¶ 10 (App. 2000) (stating that
even if an order entered after a permanency planning hearing was
appealable, the appeal would essentially be rendered moot due to a later
order terminating parental rights); see also Cardoso v. Soldo, 230 Ariz. 614,
617, ¶ 5 (App. 2012) (“[W]e will dismiss an appeal as moot when our action
as a reviewing court will have no effect on the parties.”). Accordingly, this
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court rejects Mother’s challenges to the dependency order, and as stated
above, finds termination was appropriate under A.R.S. § 8-533(B)(2).
CONCLUSION
¶53 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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